One of our Professional Negligence Solicitors, Gareth Jones, discusses mental capacity, what it is and how it could impact your Will.
What is mental capacity?
Mental capacity is the ability to make decisions and do things on your own behalf. If you lack mental capacity, you are unlikely to be able to validly make certain decisions or enter into certain transactions.
How do you determine whether a person has lost mental capacity during their lifetime?
Under the common law, everyone is presumed to have mental capacity until the contrary is proven. There is also legislation in place which assists the Court in determining whether a person lacks capacity to make certain decisions on their own behalf.
Under Section 2 of the Mental Capacity Act 2005, a person will lack mental capacity if they cannot understand information relating to a decision, retain that information, use or weigh that information to make the decision, or communicate their decision.
Proving that a person lacks mental capacity is not easy. This is understandable, as once a person has been deemed to lack mental capacity, their ability to make decisions for themselves is strictly limited and so there is a high threshold which a Court will want to see met before determining lack of mental capacity. There will be a number of assessments of the circumstances surrounding the person believed to lack capacity, including their physical state; any recent changes to their family/home/work life; and any mental illness they suffer with, amongst other factors the Court will take into consideration.
There is the Code of Practice which accompanies the Mental Capacity Act 2005 and provides guidance as to how to assess a person’s capacity. It states that medical professionals, such as a doctor, will usually be best suited to assess mental capacity, but of course this will depend on the individual circumstances. Each assessment should be done on a case-by-case basis.
What will happen if you lose mental capacity in your lifetime?
If you are deemed to lack mental capacity during your lifetime, you will continue to be so until the contrary is proven in Court.
Practically, the impact of losing of mental capacity means that a person will not be able to enter into contracts or make gifts or deal with their own property. If they attempt to do this, the various transactions will be set aside as the person making them lacked capacity to do so at the time. You also cannot refuse medical treatment if you lack mental capacity.
What can you do to protect yourself in the event that you lose mental capacity in your lifetime?
One of the main protective measures you can put in place which will come into effect should you lose mental capacity is to appoint a Lasting Power of Attorney (‘LPA’) to help deal with your day-to-day affairs. An LPA will appoint a specific person (a ‘Donee’) who is appointed to act in your best interests will help to make decisions on your behalf.
The LPA would need to be created whilst you still have mental capacity to make the decision to create it. You can appoint anyone you wish to act as Donee under an LPA, and you should choose someone you trust to act in your best interests. You can have more than one Donee acting under an LPA.
The responsibilities will begin only in the event that you lose mental capacity, but the LPA itself would need to be created before you have lost capacity to appoint them. You can revoke an LPA if you decide you no longer wish to have it in place. An LPA must comply with legal formalities and must be registered with the Office of the Public Guardian to be valid.
If you lose mental capacity during your lifetime but do not have an LPA in place, an emergency application can be made to the Court of Protection (‘CoP’). The CoP can put in place an emergency provision which enables a person to make decisions on your behalf, pending a more permanent provision to ensure you are properly looked after going forward.
The Ministry of Justice and the Office of the Public Guardian is currently reviewing the LPA process and hopes to set out proposals to ‘modernise Lasting Powers of Attorney’, with the Government consultation due to close in October 2021 (more information can be found on the Government website via this link – click here.
As previously mentioned, you cannot refuse medical treatment if you lack mental capacity. This can pose a particular problem for individuals who have religious or ideological reasons for not wanting to have certain treatments. If you think this could apply to you, one way of protecting against this is to make an ‘advance decision to refuse treatment’, which is legally binding and will mean that your decision to refuse the specified type of treatment will stand even if you lose mental capacity subsequently. Similarly, you can make an advance statement setting out your wishes generally (outside of medical treatment) in the event you lose mental capacity further down the line.
What is testamentary capacity?
Testamentary capacity refers to the mental capacity of a person making a Last Will and Testament (a ‘Will’) at the time the Will was made. If it is deemed that a person lacked testamentary capacity to make the Will it will be invalid, and the deceased’s estate will either pass on the basis of an earlier Will (if there is one) or under the Intestacy Rules.
How do you determine whether a person has lost testamentary capacity?
The Court will consider various factors to determine whether the deceased had testamentary capacity, including looking at their frame of mind at the time they made the Will, and also whether there were any significant changes in the Testator’s life at the time of making their Will, including whether there were any breakdowns in relationships at the time or other changes to their financial position or personal relationships.
The Court has also developed tests, such as the one set out in the case of Banks v Goodfellow (1870) LR 5 QB 549. In that case the Court ruled that, to make a valid Will, the person making it must be able to understand the nature of making a Will and the effect it will have, they must also be able to appreciate the extent of the property they are disposing under the Will. The final principle the Court set out is that the person creating the Will must be able to understand the individuals they would normally be expected to provide for under their Will, and they must not be under a ‘delusion of the mind’ which would impact their decision as to the people they decide to leave their estate to under the Will. The Court also said that the mere fact that the person making the Will had a mental illness at the time will not be determinative, it must be shown that they lacked capacity to appreciate the above principles. Only considering all of these principles as a whole would a Court be able to determine testamentary capacity.
In the recent case of Clitheroe v Bond [2020] EWHC 1185 (Ch), the Court were asked to determine whether the correct basis to assess testamentary capacity is following the test set out in the MCA 2005 (discussed above) and whether this effectively put the test set out in Banks v Goodfellow to one side. The Court ruled that the test set out in Banks v Goodfellow “has withstood the test of time, has not been swept away by the MCA.” (see paragraph 56 of the judgment, which can be found by clicking here.
It therefore remains the position that the Court will need to look at all the circumstances surrounding the deceased at the time they made the Will, in addition to the principles set out in the MCA 2005, in order to determine whether they had the requisite mental capacity.
Get in touch with our specialist team
If you want to find out more about creating a Lasting Power of Attorney or believe that someone close to you may have lacked mental capacity at the time of creating their Will and you have lost out as a result, please contact Jordans Solicitors’ Will and Probate Disputes team on 033 0300 1103 to find out how we can help you.
